We are saddened by the passing of Tom Berger yesterday, who was a major force for reconciliation in this country and a hero to us all at JFK Law.
Tom was one of the prime movers in the formation of contemporary Aboriginal law. He brought the first seminal cases when he was a young lawyer. In Bob and White, which the Supreme Court decided in 1965, he won recognition for the existence and legal enforceability of one of the Douglas Treaties on Vancouver Island. He followed up that decision with an even more significant judgment – the Supreme Court’s decision in Calder, released in 1973 – which established that Aboriginal title can exist in Canadian law. He later brought other major cases to the Supreme Court that helped grow the jurisprudence, including Manitoba Métis Federation, which elaborated on the Honour of the Crown.
But Tom did much more for reconciliation that just advocate in the courts. For one thing, he helped work into the consciousness of the Canadian public the basic facts that Indigenous peoples were here governing the land before European settlers came, that their economic, cultural and spiritual relationships with their lands remain vital and real, and that their rights and interests demand respect and protection. The Mackenzie Valley Inquiry, which he led, became essential television viewing and the final report – the Berger Report, in which he recommended a delay in the pipeline project in order to protect the Indigenous communities – was a bestseller. And he educated the public through other writings, including A Long and Terrible Shadow: White Values, Native Rights in the Americas and public reports like his 2006 report on the Nunavut Land Claims Agreement where he laid out the inseparable link between the use of Inuktut in schools and treaty implementation.
But perhaps his greatest contribution to reconciliation was when he put his own career – and pension – on the line in order to persuade Prime Minister Pierre Trudeau to hold the line with the provinces and insist on the inclusion of section 35 in the Constitution Act, 1982. The provision had been part of the constitutional package being debated by the federal government and the provinces, but in late 1981 it was removed. Tom was at that time a judge on the BC Supreme Court and obliged by the norms of judicial impartiality to remain silent. And yet he spoke up, stating the hard truth in an op-ed in the Globe and Mail:
No words can deny what happened. The first Canadians — a million people and more — have had their answer from Canada’s statesmen. They cannot look to any of our governments to defend the idea that they are entitled to a distinct and contemporary place in Canadian life. Under the new constitution the first Canadians shall be the last. This is not the end of the story. The native peoples have not come this far to turn back now.
As a result of Tom breaking judicial silence a complaint was filed with the Canadian Judicial Council, and Tom ultimately decided to resign. But the op-ed had the important effect of helping galvanize the federal NDP to insist on the inclusion of section, which – along with the compelling activism of Indigenous leaders and their supporters on the Constitution Express – made clear to Trudeau that jettisoning section 35 was simply not an option.
Tom understood and demonstrated to us all that laws and the institutions that pronounce them are but means to achieve a just society, and if the laws are not up to that task, then new law must be made and the institutions of law must be transformed.
All of us at JFK Law take inspiration from his career and seek to carry even further what he already took so far.